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DETECTIVE’S TESTIMONY INDICATING DEFENDANT WAS IDENTIFIED IN A LINEUP IDENTIFICATION PROCEDURE CONSTITUTED INADMISSIBLE BOLSTERING, ALTHOUGH THIS WAS A ONE WITNESS IDENTIFICATION CASE, THE EVIDENCE WAS OVERWHELMING AND THE ERROR WAS DEEMED HARMLESS (SECOND DEPT).

The Second Department, reviewing the unpreserved issue in the interest of justice, determined that the detective’s testimony indicated defendant had been identified in a lineup was inadmissible bolstering. The error was reviewed in the interest of justice. In light of the overwhelming evidence, however, the error was deemed harmless:

We conclude that the detective’s testimony that the defendant was arrested “[a]fter the lineup was conducted” could have led the jury to believe that the police were induced to take action as a result of the lineup identification, and therefore constituted improper implicit bolstering of the witness’s identification testimony … .

… “Harmless error analysis proceeds in two stages” … . First, “unless the proof of the defendant’s guilt, without reference to the error, is overwhelming, there is no occasion for consideration of any doctrine of harmless error” … . Second, for a nonconstitutional error to be harmless the appellate court must conclude “that there is [no] significant probability . . . in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred”… .

In analyzing the effect of a bolstering error, the Court of Appeals has stated that “[t]he standard of harmlessness  … is whether the evidence of identity is so strong that there is no substantial issue on the point'”… . In the context of a case involving an identification by a single witness, the Court of Appeals has concluded that a bolstering error was harmless in light of, among other things, the “unusually credit-worthy” nature of the witness’s identification … .

Here, although the only direct evidence connecting the defendant to the commission of the crimes charged was the identification testimony of a single witness, the evidence of the defendant’s guilt, without reference to the error, was overwhelming … . People v Holmes, 2018 NY Slip Op 08954, Second Dept 12-26-18

 

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PLAINTIFF BANK DID NOT DEMONSTRATE STANDING TO FORECLOSE ON THE REVERSE MORTGAGE WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that plaintiff bank did not demonstrate standing to foreclose on the reverse mortgage. The evidence submitted did not meet the requirements of the business records exception to the hearsay rule:

… [T]he plaintiff submitted, among other things, the affidavit of Stephen Craycroft, an assistant secretary of Nationstar Mortgage, LLC, who attested that the plaintiff was in possession of the note at the time of the commencement of this action. However, the plaintiff failed to demonstrate the admissibility of the records relied upon by Craycroft under the business records exception to the hearsay rule (see CPLR 4518[a]), since Craycroft did not clearly attest that he was personally familiar with the plaintiff’s record-keeping practices and procedures … . Inasmuch as the plaintiff’s cross motion was based on evidence that was not in admissible form, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law … .

Contrary to the plaintiff’s contention, the copy of the note annexed to the summons and complaint was insufficient to demonstrate, prima facie, its standing to commence the action, since the note bore a specific endorsement to an entity other than the plaintiff … . Nationstar HECM Acquisition Trust 2015-2 v Andrews, 2018 NY Slip Op 08944, Second Dept 12-26-18

 

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RESPONSE TO A JURY NOTE MAY HAVE MISLED THE JURY TO CONCLUDE THEY COULD MAKE THEIR OWN LAY JUDGMENT, AS OPPOSED TO RELYING ON EXPERT OPINION, ABOUT WHETHER DEFENDANT SEX OFFENDER SUFFERED FROM A MENTAL ABNORMALITY IN THIS CIVIL MANAGEMENT PROCEEDING, ISSUE REVIEWED ON APPEAL IN THE INTEREST OF JUSTICE, NEW TRIAL ORDERED (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Duffy, over a dissent, reversed the finding that defendant sex offender (Timothy R.) suffers from a mental abnormality and requires civil commitment and ordered a new trial. The jury sent out a note asking whether they must agree with the diagnosis of one of the experts to find defendant has a mental abnormality. The court, over defendant’s counsel’s objection, answered “no.” On appeal defendant argued that the jury was effectively told it could ignore the experts and come to their own judgment on the mental abnormality issue. Although that specific argument was not made below, and therefore was not preserved, the Second Department reviewed it in the interest of justice and held that the jury would have to agree with an expert’s diagnosis to find defendant suffered from a mental abnormality:

… [C]ontrary to the Supreme Court’s response to the jury note, in order to conclude that Timothy R. has a mental abnormality, the jury was required to accept expert testimony as to at least one diagnosis that meets the legal predicate for mental abnormality. When the court answered the note in the negative and reiterated to the jury the general instruction as to accepting or rejecting all or some of an expert’s testimony as it sees fit … , the jury could have been misled into relying solely upon its own lay opinion or so much of the expert testimony as relied upon nonpredicate diagnoses, without regard to the expert testimony, that Timothy R. has a congenital or acquired condition, disease, or disorder … . Matter of State of New York v Timothy R., 2018 NY Slip Op 08940, Second Dept 12-26-18

 

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EVIDENCE THE CHILD WITNESSED A PHYSICAL ALTERCATION BETWEEN MOTHER AND FATHER WAS SUFFICIENT FOR A FINDING FATHER NEGLECTED THE CHILD (SECOND DEPT).

The Second Department, reversing Family Court in this child neglect proceeding, determined there was sufficient admissible evidence to find father had neglected the child. Although hearsay statements by mother were properly deemed inadmissible, the evidence that the child witnessed a physical altercation between mother and father was sufficient:

“[E]xposing a child to domestic violence is not presumptively neglectful”… However, a finding of neglect based on an incident or incidents of domestic violence is proper where a preponderance of the evidence establishes that the child was actually placed in imminent danger of harm by reason of the failure of the parent or caretaker to exercise a minimal degree of care … . Except for certain exceptions provided for in the Family Court Act, only competent, material, and relevant evidence may be admitted at a fact-finding hearing held under [*2]article 10 of the Family Court Act … .

… [R]elevant evidence, which included, … the mother’s in-court admission that she and the father engaged in a physical altercation in the child’s presence, as well as other competent, material, and relevant evidence establishing a history of domestic violence between the parents, established that the child’s physical, mental, or emotional condition was in imminent danger of being impaired as a result of the father’s failure to exercise a minimum degree of care … . Matter of Meeya P. (Anthony C.), 2018 NY Slip Op 08938, Second Dept 12-26-18

 

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THE AFORD PLEA WAS NOT SUPPORTED BY STRONG EVIDENCE OF DEFENDANT’S INTENT TO COMMIT GRAND LARCENY, THE PLEA WAS VACATED IN THE INTEREST OF JUSTICE (FOURTH DEPT).

The Fourth Department vacated defendant’s Alford plea finding that the record lacked the requisite strong evidence of actual guilt. The defendant and two codefendants were seen by a security guard heading toward the exit of a store with unpaid merchandise in a cart. They abandoned the merchandise near the exit, got in a car, and led the police on a high speed chase resulting in two accidents and injury to a police officer. The Alford plea issue was not preserved but the Fourth Department reviewed it in the interest of justice. The Fourth Department found the evidence of intent to commit grand larceny lacking:

We agree with defendant, however, that County Court erred in accepting his Alford plea because the record lacks the requisite strong evidence of his actual guilt … . Although defendant failed to preserve that contention for our review by moving to withdraw his plea or to vacate the judgment of conviction … , and this case does not fall within the rare exception to the preservation requirement set forth in People v Lopez (71 NY2d 662, 666 [1988]…), we exercise our power to review defendant’s unpreserved contention as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]…).

The record, which includes sworn grand jury testimony, sufficiently establishes that defendant “exercised dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner’s continued rights” … , and that the value of such property exceeded one thousand dollars… . We conclude, however, that the record lacks strong evidence that defendant acted with the intent to deprive the owner of the property or to appropriate the property to himself or to a third person … . Thus, inasmuch as the record lacks strong evidence that defendant acted with the intent to commit grand larceny in the fourth degree, the record also lacks strong evidence that defendant caused injury to a person in the course of and in furtherance of the commission or attempted commission of that crime or during the immediate flight therefrom … . People v Johnson, 2018 NY Slip Op 08802, Fourth Dept 12-21-18

 

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FAMILY COURT SHOULD NOT HAVE GRANTED GRANDMOTHER’S PETITION FOR VISITATION, THE PARENTS WERE FIT AND THEIR TESTIMONY SHOULD HAVE BEEN GIVEN WEIGHT, INSTEAD FAMILY COURT IGNORED THE PARENTS’ TESTIMONY (FOURTH DEPT).

The Fourth Department, reversing Family Court, determined the record did not support granting visitation rights to grandmother. The parents of the children were deemed fit and the relationship between the parents and the children was deemed to be loving and supportive. Therefore the wishes of the parents were to be given weight, Family Court ignored the testimony of the parents. Grandmother is an attorney who practices in Family Court. After a minor argument at her home between father and his brother, grandmother instituted litigation, which the Fourth Department characterized as using her position in the legal system to undermine the parental relationship:

It is well established that a fit parent has a “fundamental constitutional right” to make parenting decisions … . For that reason, the Court of Appeals has emphasized that “the courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one” … . …

Because the parents are fit, their decision to prevent the children from visiting the grandmother is entitled to “special weight” … . …

[The] evidence makes it difficult to draw any conclusion other than that the grandmother “is responsible for escalating a minor incident into a full-blown family crisis, totally ignoring the damaging impact [her] behavior would have on the [family relationships] and making no effort to mitigate that impact” … . Matter of Jones v Laubacker, 2018 NY Slip Op 08822, First Dept 12-20-18

 

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INSUFFICIENT EVIDENCE THAT DEFENDANT HAD A HISTORY OF DRUG AND ALCOHOL ABUSE, RISK ASSESSMENT REDUCED (FOURTH DEPT).

The Fourth Department, in this Sex Offender Registration Act (SORA) risk assessment proceeding, determined there was insufficient evidence that defendant had a history of alcohol and drug abuse:

We agree with defendant that the People failed to prove by the requisite clear and convincing evidence that he had a history of alcohol and drug abuse … .

The SORA Risk Assessment Guidelines and Commentary for risk factor 11 state in relevant part that “[a]lcohol and drug abuse are highly associated with sex offending . . . The guidelines reflect this fact by adding 15 points if an offender has a substance abuse history . . . It is not meant to include occasional social drinking. In instances where the offender abused drugs and/or alcohol in the distant past, but his more recent history is one of prolonged abstinence, the . . . court may choose to score zero points in this category” (Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 15 [2006]). At the SORA hearing, the People presented evidence that defendant drank one can of beer each month. We agree with defendant that such evidence was insufficient to warrant the assessment of points under risk factor 11 … . The People also presented evidence that defendant smoked marihuana in his teenage years and early twenties, but thereafter participated in a drug treatment program and, at the time of the presentence interview, had not smoked marihuana for four years. We agree with defendant that the People’s evidence established that his recent history of drug use was one of prolonged abstinence and was also insufficient to warrant the assessment of points under risk factor 11 … . People v Madonna, 2018 NY Slip Op 08789, Fourth Dept 12-21-18

 

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EXPERTS MAY NOT RELY ON DISPUTED FACTS IN RENDERING AN OPINION IN A MEDICAL MALPRACTICE CASE (FOURTH DEPT).

The Fourth Department, modifying Supreme Court in this medical malpractice action, noted that experts cannot rely on disputed facts when rendering an opinion:

Although defendants submitted affidavits from medical experts opining that the individual defendants did not deviate from the standard of care and that any alleged deviation was not a proximate cause of the postsurgery medical complications, those experts relied solely on the symptoms as documented in the medical records of [two of the defendants]. … [T]hose symptoms are vastly different from the symptoms allegedly reported to the remaining defendants and demonstrated by plaintiff before the surgery. It is well settled that experts may not rely upon disputed facts when rendering an opinion … . Moreover, we note that defendants’ experts failed to address plaintiff’s contention that, had he been timely diagnosed, he would not have been required to undergo the surgery in the first place. … “By ignoring the [allegation that the remaining defendants’ malpractice caused plaintiff to undergo the very surgery that caused the brain bleed], defendant[s’] expert[s] failed to tender[ ] sufficient evidence to demonstrate the absence of any material issues of fact’ . . . as to proximate causation and, as a result, [the remaining] defendant[s] [were] not entitled to summary judgment” with respect to those parts of their respective motions and cross motions … . Kubera v Bartholomew, 2018 NY Slip Op 08784, Fourth Dept 12-21-18

 

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ISSUE OF FACT WHETHER DRIVER WITH THE RIGHT OF WAY SHOULD HAVE SEEN THE CAR THAT WAS NOT SLOWING DOWN AS IT APPROACHED THE INTERSECTION, SUPREME COURT REVERSED, TWO-JUSTICE DISSENT (FOURTH DEPT).

The Fourth Department, over a two-justice dissent, determined Supreme Court should not have granted the Sile defendants’ motion for summary judgment in this intersection traffic accident case. Matthew Sile had the right of way when his truck was broadsided by a car (driven by Buck) which failed to stop an the intersection. The majority held that the papers submitted by the Sile defendants raised an issue of fact whether Matthew Sile should have seen the Buck car which was not slowing down as it approached the intersection:

Although plaintiffs do not dispute that Buck was negligent in violating the Vehicle and Traffic Law or that Matthew had the right-of-way as he proceeded straight through the intersection, it is well settled that ” there may be more than one proximate cause of [a collision]’ “… . Thus, in their motions, the Sile defendants had the initial burden of establishing as a matter of law either that Matthew was not negligent or that any negligence on his part was not a proximate cause of the accident… . We conclude in both appeals that the Sile defendants failed to meet that burden … .

Although “a driver who has the right[-]of[-]way is entitled to anticipate that [the drivers of] other vehicles will obey the traffic laws that require them to yield” … , that driver nevertheless has a “duty to exercise reasonable care in proceeding through [an] intersection” … , and “cannot blindly and wantonly enter an intersection”… . Here, by their own submissions, the Sile defendants raised a triable issue of fact whether Matthew met his “duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident” … . Gilkerson v Buck, 2018 NY Slip Op 08782, Fourth Dept 12-21-18

 

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SENTENCES FOR MURDER AND CRIMINAL POSSESSION OF A WEAPON MUST RUN CONCURRENTLY (FOURTH DEPT).

The Fourth Department determined consecutive sentences for murder and criminal possession of a weapon were illegal:

… [T]he sentence is illegal insofar as the court directed that the sentence imposed for criminal possession of a weapon in the second degree shall run consecutively to the sentence imposed for murder in the second degree… . As the People correctly concede, “the sentence on the murder conviction should run concurrently with the sentence on the weapon possession conviction that requires unlawful intent … , because the latter offense was not complete until defendant shot the victim[]” … . People v Maull, 2018 NY Slip Op 08780, Fourth Dept 12-21-18

 

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